Ohio Defendants Can Force Plaintiffs to Prove That Asbestos Was a Substantial Factor in Lung Cancer With Sufficient Proof of SmokingSupreme Court of Ohio, September 27, 2018

OHIO — The Plaintiff Bobby Turner, an occasional cigar smoker, alleged that he developed lung cancer as a result of exposure to asbestos from his work as a drywall finisher between 1962 and 1978. At the outset of his case, Turner did not submit a report per RC 2307.92(c)(1).that showed “diagnosis by a competent medical authority that [he] has primary lung cancer and that exposure to asbestos is a substantial contributing factor to that cancer.” Essentially, Turner took the position that he was not a smoker because of his infrequent habit and alternate tobacco delivery method, and that he was not required to meet the prima facie evidence standard of the Ohio code.

Defendant Union Carbide Corporation (UCC) filed a motion for administrative dismissal and challenged the fact that Turner was a “nonsmoker,” and argued that he should have to prove the same by means of a written medical report. The trial court denied this motion and UCC appealed. The appeals court affirmed the trial court’s denial, rejecting UCC’s argument and holding that whether someone is a “smoker” is a question of fact, rather than a medical determination. The Supreme Court reversed the appeals court and remanded the matter to the trial court to determine whether UCC put the application of Ohio code at issue by submitting records that specified that Turner had smoked the equivalent of one pack year during the last 15 years.

In their decision, the Supreme Court stated that the language of the statute was clear that a person is a “smoker” only if that designation is specified in the “written report of a competent medical authority,” and that it is not a question of fact. Further, they state that in an asbestos tort action alleging lung cancer, the express statutory language does not require a plaintiff to prove that he or she is not a “smoker.” To clarify the process where a plaintiff’s smoking status is in dispute, the court laid out the steps that the parties need to take to meet the requirements of the Ohio code. If a plaintiff is asserting non-smoking status, they will not submit any reports, implicitly arguing that the statute is inapplicable. The defendants may challenge this assertion through a timely motion, and submit a report from a physician that shows that the plaintiff is a “smoker” as defined in RC 2307.91 (DD), and has smoked the equivalent of one pack year during the last 15 years. The trial court then applies a summary judgment standard, and determines whether a “competent medical authority” has determined that the plaintiff is a “smoker” per the code. If the trial court determines that the plaintiff is a “smoker,” but has not met the requirements of RC 2307.92(c)(1), they may administratively dismiss the action without prejudice and retain jurisdiction. The plaintiff can then move to reinstate the action by making a prima facie showing that meets the requirements of RC 2307.92(c)(1).

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